Article
Institutional Independence: Lawyers and the Administrative State
Fordham Law Review
(2019)
Abstract
The institutional structure where federal government lawyers practice is
fraught with political and economic pressures that undermine the ability of
lawyers to exercise independent professional judgment. A lack of candid
legal advice in this space not only removes a pivotal fail-safe between legal
and illegal state action but also precariously imbalances the powerful
administrative state, exposing it to undue political influence. For these
reasons, this Article argues that structural changes to administrative
institutions must be made to support and nurture lawyers’ ability to
independently determine the bounds of legality.
Previous scholarship has examined the role of professional independence
for lawyers generally; however, the legal academy has yet to explore the
centrality of professional independence to administrative law or the
structural pressures influencing its exercise. This Article joins a body of
work that adopts a new institutionalist approach to professional misconduct.
In doing so, this Article makes three principal contributions: (1) it outlines
why institutionally sustained professional independence is essential to the
federal administrative state; (2) it identifies institutional failings that impede
government lawyers’ exercise of professional independent judgment; and
(3) it proposes institution-based solutions to facilitate professionally
independent conduct by government lawyers. By insulating government
lawyers from excessive interference on core professional judgment calls,
civil society may rely on these lawyers to help protect the basic structure of
the rule of law.
Keywords
- administrative law,
- federal government,
- legal ethics,
- government lawyers
Disciplines
Publication Date
April, 2019
Citation Information
Melissa D. Mortazavi. "Institutional Independence: Lawyers and the Administrative State" Fordham Law Review Vol. 87 Iss. 5 (2019) p. 1937 - 1964 Available at: http://works.bepress.com/melissa_mortazavi/25/